JUDGMENT NO. 28
YEAR 2024
ITALIAN REPUBLIC
IN THE NAME OF THE ITALIAN PEOPLE
THE CONSTITUTIONAL COURT
composed of:
President: Augusto Antonio BARBERA;
Judges: Franco MODUGNO, Giovanni AMOROSO, Francesco VIGANÒ, Luca ANTONINI, Stefano PETITTI, Angelo BUSCEMA, Emanuela NAVARRETTA, Maria Rosaria SAN GIORGIO, Filippo PATRONI GRIFFI, Marco D’ALBERTI, Giovanni PITRUZZELLA, Antonella SCIARRONE ALIBRANDI,
has issued the following
JUDGMENT
in the proceedings concerning the constitutional legitimacy of Article 633 of the Criminal Code, initiated by the Ordinary Court of Florence, First Criminal Division, sitting as a single judge, in the proceedings against E.P. L. and others, by order of 17 April 2023, registered under no. 74 of the 2023 register of orders, and published in the Official Gazette of the Republic no. 23, first special series, of the year 2023.
Having reviewed the intervention of the President of the Council of Ministers;
Having heard the reporting Judge Stefano Petitti in the council chamber of 6 February 2024;
Having deliberated in the council chamber of 6 February 2024.
Facts of the Case
1.– The Ordinary Court of Florence, First Criminal Division, sitting as a single judge, by order of 17 April 2023, registered under no. 74 of the 2023 register of orders, raised, in reference to Articles 2, 3, 42 and 47 of the Constitution, questions of constitutional legitimacy of Article 633 of the Criminal Code, "in the part in which it also applies to the invasion for habitation purposes of buildings that have been abandoned for several years".
2.– The referring judge reports that the pending proceedings concern the position of four defendants summoned to trial to answer for the crime of invasion of buildings. The trial investigation would have demonstrated the commission of the act, at least for three of the defendants. A witness had stated that the occupied property was a "huge building in a state of abandonment, with a large surrounding land", inside which "numerous people, including the current defendants, as well as various belongings" had been found.
The order of referral summarizes the deposition of a witness, according to whom the occupants had obtained in the building "real living spaces, divided by families" and there were, in particular, seven family units, including young children. At the time of the intervention by the police, the people found in the building had shown themselves to be calm and cooperative, and had only stated "that they had no other place to go". The eviction was carried out spontaneously by the occupants a few days after the ascertainment of the facts.
The referring judge highlighted that the building was intended for residential use, that it had been in a state of abandonment since approximately 2000, that the liquidator of the real estate company that owned the property had not even viewed the building, nor was he aware of its occupation before being informed by the State Police.
However, in the opinion of the referring judge, it had to be excluded that the defendants were in a state of necessity, since the case law of the Supreme Court of Cassation had held, with regard to similar cases, that the characteristic of the current danger was lacking, which is in itself incompatible with "all those situations of non-contingent danger characterized by a sort of chronicity, being dated and destined to continue over time". There would therefore be a non-current danger, but "permanent precisely because the housing need – if not transient [...] – is necessarily destined to continue over time".
In essence, the referring judge observes, the defendants had intended to resolve with the occupation of another's property not an exceptional and temporary situation, but rather a lasting need for housing.
The Court specifies that in the case under examination, the subjective element of the crime referred to in Article 633 of the Criminal Code would also be present, as outlined by the case law of the Court of Cassation precisely in cases of occupation of another's property in a state of abandonment (since a divestment of the right of ownership is not configurable).
Therefore, as the elements of the crime of invasion of buildings were present, the Court of Florence questioned the constitutional legitimacy of Article 633 of the Criminal Code in reference to Articles 2, 3, 42 and 47 of the Constitution.
3.– On the point of the non-manifest unfoundedness of the questions, the referring judge, linking to the elaboration resulting from the case law of this Court which includes the right to housing in the catalog of inviolable rights and among the essential requirements characterizing the sociality to which the democratic State desired by the Constitution conforms, thus considers its object a good of primary importance.
The Court of Florence then invoked the right to private property, protected by Article 42 of the Constitution and Article 1 of the Additional Protocol to the European Convention on Human Rights, drawing inspiration from the case law of this Court on limitations of the landlord's right of property allowed for reasons of general interest of the community and for the protection of the rights of the tenant, and yet doubts the applicability of these principles in favor of owners of properties that are left for a long period of time in conditions of abandonment.
The assertion of the referring judge is that "[i]n the case of properties that have been unused for so long, left in a state of total abandonment", the social function of property "disappears", and indeed the properties themselves become "a source of risks and damages to the surrounding environment", as well as possible causes of "alteration of the urban planning of the territory planned by the authorities".
The order of referral also maintains that the state of abandonment of the properties "appears all the more disrespectful of the expected social function of private property if one considers the persistent housing emergency that characterizes the Italian reality".
The "lack of dignified housing solutions for the less affluent segments of the population" would receive significant confirmation from the multiple legislative interventions aimed at addressing the hardship in finding housing.
The Court of Florence thus observes that "[i]n this context, if it is perhaps legitimate to grant civil protection to the owners of properties left in a state of abandonment against any unlawful occupation, it seems unreasonable to prosecute the latter also criminally".
It seems unreasonable to the referring judge "to criminalize the conduct of those who – in order to satisfy a fundamental need, the object of an inviolable right that our democratic State should guarantee – occupy a property (possibly also for theoretical residential use, as in the case at hand), but concretely left by the owner for years in a state of abandonment".
Nor, finally, would it be possible to arrive at a constitutionally compliant interpretation of Article 633 of the Criminal Code, as the attribution of criminal relevance to the conduct of those who occupy buildings in a state of abandonment, even for residential purposes, emerges from the constant jurisprudential application.
4.– The President of the Council of Ministers, represented and defended by the State Attorney General's Office, has filed an intervention in the present proceedings, requesting that the questions be declared unfounded.
The State Attorney General's Office emphasizes that the challenged provision is put in place to safeguard the inviolability of real estate assets, public or private, against acts aimed at disturbing the de facto relationship on the assets, established either by the owner or by third parties.
The term "another's" broadens the object of protection, constituted not only by the right of ownership, but by any other relationship with the property, established even by a subject other than the owner, who is equally interested in the freedom and integrity of the asset.
Moreover, the incriminatory provision pursues conduct that necessarily evokes a quid pluris with respect to the simple arbitrary entry into the property, denoting a disturbance attributable to a sort of "functional dispossession", capable of compressing, in whole or in part, the faculties of enjoyment or the destination of the asset.
As for the parameters evoked by the referring judge, the state defense notes that Article 47 of the Constitution promotes access to the "ownership" of the house and not to housing as such, obtained through unlawful occupation. Nor would Article 2 of the Constitution offer protection to a right to housing in any form procured. Furthermore, Article 42 of the Constitution would not allow to respond to the housing problem, transforming private property into a public service.
The State Attorney General's Office argues that the defendants could not even complain of any unreasonable limitation of a right recognized by the legislator, nor invoke a claim to the preservation of housing (which is not called into question by the criminal rule, but rather by the civil rules aimed at protecting ownership rights by way of restitution and compensation).
The order of referral would thus aim at an additive ruling that excludes the punishability of a crime in protection of individual assets, attributing to the occupant a new right of access to housing.
The reconstruction made by the referring judge, according to the State Attorney General's Office, would not even be in line with the interpretation of Article 8 of the European Convention on Human Rights offered by the European Court of Human Rights: the European notion of the right to housing is resolved in a claim for the preservation of a dwelling that is already available to the person concerned and not in guaranteeing – or, as in the case at hand, in justifying – indiscriminate (or even criminally relevant) access to a dwelling.
The state defense also refutes the invocation of the social function of property as justification for the non-application of a criminal rule. The reference to Article 1 Protocol add. ECHR would also be inadequate, as the civil conflict between dominical interests and housing needs would not come into play with the raised questions of constitutional legitimacy of Article 633 of the Criminal Code, but rather the punishability of conduct, pursued for reasons of public interest other than those of the private owner.
The petitum of the order of referral, the State Attorney General's Office further warns, would postulate an unreasonable and indeterminate extension of the perimeter of non-punishability of the conduct, so as to embrace all the hypotheses of "invasion for habitation purposes of buildings in a state of abandonment for several years", introducing two negative elements in the case, id est "the state of abandonment for several years" and the "habitation purpose".
Lastly, the state defense observes that the Court of Florence does not bring back – and, indeed, positively excludes such a solution in the case submitted to its cognizance – the question within the scope of the justifications, so as to possibly excuse the conduct on the basis of the state of necessity ex Article 54 of the Criminal Code; nor does it operate an assessment of proportionality in concrete terms between the abandonment of the property, which could argue for a mitigation of the offense to the legal interest protected by the incriminatory rule, and the housing purpose, which may have motivated the offender exclusively.
Legal Considerations
1.– The Court of Florence, First Criminal Division, sitting as a single judge, raised, in reference to Articles 2, 3, 42 and 47 of the Constitution, questions of constitutional legitimacy of Article 633 of the Criminal Code, "in the part in which it also applies to the invasion for habitation purposes of buildings that have been abandoned for several years".
2.– The referring judge reports that the pending proceedings concern the position of four defendants summoned to trial to answer for the crime of invasion of buildings. The trial investigation would have shown that: the occupied building was intended for residential use; it had been in a state of abandonment since approximately 2000; the liquidator of the real estate company that owned it had not even viewed the property, nor was he aware of its occupation before being informed by the State Police; numerous people, including the defendants, had been found inside the building, who had obtained living spaces in the property; at the time of the investigation, there were seven family units, including young children.
Having ruled out that the defendants were in a state of necessity, since there was a non-current danger, or rather imminent, but "permanent", since it was correlated to a housing need destined to continue over time, the Court of Florence, having also considered that the subjective and objective elements of the crime of invasion of buildings were present, questioned the constitutional legitimacy of Article 633 of the Criminal Code in reference to the indicated parameters.
3.– As for the non-manifest unfoundedness, the referring judge premises that, according to the case law of this Court, the right to housing constitutes a fundamental right of the person. It therefore doubts that the social function of property is respected in the case in which the owner leaves his property for a long period of time in conditions of abandonment, also considering the persistent housing emergency that characterizes the Italian reality.
The Court thus observed that, even if it is legitimate to recognize civil protection to the owner of a property left in a state of abandonment, against any unlawful occupation, it would be unreasonable to prosecute the latter also criminally, all the more so if such conduct is attributable to those who have acted to satisfy a fundamental need, such as housing. Articles 2, 3, 42 and 47 of the Constitution would therefore be violated.
Lastly, the referring judge excludes the practicability of a constitutionally compliant interpretation of Article 633 of the Criminal Code, as the attribution of criminal relevance to the conduct of those who occupy buildings in a state of abandonment emerges from the constant jurisprudential application.
4.– The questions are not founded.
5.– Article 633 of the Criminal Code punishes, upon complaint of the offended person, the conduct of "[w]hoever arbitrarily invades land or buildings belonging to others, public or private, for the purpose of occupying them or otherwise deriving profit from them". In the second paragraph, Article 633 of the Criminal Code provides for an aggravated hypothesis, for which proceedings are initiated ex officio, in the case in which the act is committed by more than five people or by an obviously armed person.
According to a consolidated interpretive orientation of the case law of the Supreme Court of Cassation, the notion of "invasion", a typical element of the case in question, postulates not violent executive methods or the use of an overwhelming force, but rather an arbitrary access, without authorization of the owner, and therefore only illegal, into another's property. The consequent "occupation" then constitutes the material manifestation of the prohibited conduct and the purpose for which the abusive invasion is carried out; so that, if it continues over time, the crime reveals a permanent nature (among the many, Court of Cassation, Second Criminal Division, judgments 27 March-8 July 2019, no. 29657 and 11 November-14 December 2016, no. 53005).
The crime referred to in Article 633 of the Criminal Code is therefore understood as aimed at pursuing a conduct of "functional dispossession", which is capable of compressing, in whole or in part, the faculties of enjoyment and destination of the property belonging to the owner of the ius excludendi alios.
6.– The order of referral, without specifying when the occupation of the building had begun, concludes that the conduct was perpetrated "in the absence of a state of necessity pursuant to Article 54 of the Criminal Code", lacking the characteristic of the current danger; danger to be understood, rather, as "permanent precisely because the housing need – if not transient [...] – is necessarily destined to continue over time".
The chronological profile of the contested conduct could play a decisive role, since the Court of Cassation itself - inspired by the case law of this Court which places the right to housing "among the essential requirements characterizing the sociality to which the democratic State desired by the Constitution conforms" (ex multis, judgments no. 145 of 2023, no. 87 and no. 43 of 2022, no. 128 and no. 112 of 2021), and thus recognizing the rank of fundamental right referable to the sphere of primary assets related to personality to the same right to housing - constantly affirms that the invasion of buildings can be excused by the state of necessity resulting also from the compromise of this right, provided that the inevitability of the conduct and the current nature of the danger persist for the entire time in which the occupation continues (for example, Court of Cassation, Second Criminal Division, judgments 16 April-3 May 2013, no. 19147, 11 February-4 March 2011, no. 8724, 27 June-26 September 2007, no. 35580 and 19 March-4 June 2003, no. 24290, as well as, Sixth Criminal Division, judgment 5-13 July 2012, no. 28115). These interpretations do not transmode into an anomalous form of definitive real ablation of the asset, but are only aimed at depriving the conduct of the occupant of unlawfulness, for the purposes of the incriminatory rule referred to in Article 633 of the Criminal Code, as long as the need to occupy the dwelling maintains those requirements of absolute necessity for the satisfaction of a primary need of the person.
7.– The referring judge's assumption that, having excluded the existence of the justification referred to in Article 54 of the Criminal Code, it would still be unreasonable to provide criminal protection to the property of buildings left by the owner for a long period of time in conditions of abandonment cannot be shared.
7.1.– The Court of Florence calls for a manipulative intervention, which would exclude the punishability of conduct ex Article 633 of the Criminal Code when it comes to invasion for habitation purposes of buildings that have been abandoned for several years, maintaining that only if the agent is not animated by this purpose and the property is not in such conditions could the elements suitable to guarantee the real offensiveness of the act be found.
It would not be reasonable for the typical conduct of the crime of invasion of land or buildings to embrace factual situations in which the property has been abandoned for a long time and has subsequently been occupied for housing purposes: this would ensure, rather, an adequate economic exploitation of it.
The questions were therefore raised from the perspective according to which, in view of the satisfaction of the right to housing, to be guaranteed in a system inspired by economic and social solidarity and the full development of the person, the expansion of the social function of property would determine a limitation of the criminal relevance of the conduct of occupation.
7.2.– These arguments of the referring judge, while evocative of the need to protect the fundamental right to housing, cannot be shared.
It has already been highlighted that Article 633 of the Criminal Code sanctions the conduct of "invasion" identified as the behavior of one who, for the purpose of occupying it or otherwise deriving profit from it, enters a building or land arbitrarily, as it lacks the right of access (among others, Court of Cassation, Second Criminal Division, judgments 27 March-8 July 2019, no. 29657 and 21 May-1 October 2013, no. 40571). The ratio of the sanctioning provision is aimed at punishing the functional dispossession that compresses the faculties of enjoyment and destination of the asset belonging to those who are connected to it by a relationship of attribution protected by the legal system.
Given that the purpose of the incrimination pursuant to Article 633 of the Criminal Code is the protection of the right to peacefully enjoy or dispose of the property, belonging to the owner, the possessor or the qualified holder, the object of the criminal action can only be land or buildings belonging to others, without any distinction, and therefore also uncultivated or unproductive land, as well as uninhabited or abandoned buildings.
The challenged provision, in the part in which it also applies to the invasion for habitation purposes of buildings that have been abandoned for several years, therefore appears not unreasonable and not detrimental to Article 42 of the Constitution, as an automatic extinguishing effect of the ius excludendi alios reserved to the owner of the situation of attribution of the asset does not derive from the state of abandonment, nor, therefore, of the punitive claim directed at the protection of that right.
7.3.– The incrimination of the conduct of invasion of buildings in a state of abandonment does not even appear to be in contrast with the "social function" of the right to property, even if it is placed in close relation to Article 2 of the Constitution, as the duty of the owner to participate in the satisfaction of general interests and the fulfillment of the mandatory duties of economic and social solidarity does not mean at all that the property, even if in a state of abandonment, should suffer impairments by anyone who wants to limit its enjoyment; nor can there be interference between the right to housing of the agent, as a fundamental right referable to the sphere of primary goods connected to personality, and the interest protected by Article 633 of the Criminal Code, since the exercise of the right to housing does not involve as an indispensable means the occupation of another's building (judgment no. 220 of 1975).
7.4.– As for the evocation of Article 47 of the Constitution, which is also generic and without motivation, it must be considered that it, in providing in the second paragraph that the Republic "[p]romotes the access of popular savings to the ownership of housing", identifies a form of privileged guarantee of the primary interest in having a dwelling and contains a principle that the legislator is required to be inspired by, but does not thereby legitimize the occupation of another's building by anyone who intends to use it as their own housing.
7.5.– The referring judge seems, in reality, moved by the need to bring out in the individual concrete case, to confine it within the boundary of the subsidiarity of the criminal instrument, the inescapable need of the agent to find housing for himself and for his family unit.
Where, however, this is the essential and exclusive purpose of the agent's conduct and where the invasion concerns abandoned or dilapidated land or properties, it is the task of the interpreter to examine and assess whether the elements of the state of necessity dictated by the current danger of serious damage to the person exist, as well as to verify the offensiveness "in concrete" of the conduct, in light of the ratio of the incriminatory provision, a task that falls outside the scrutiny of constitutional legitimacy.
7.6.– The qualification as a criminal offense of the conduct evokes executive methods in concrete terms that are detrimental to the legal good, otherwise remaining outside the area described by the normatively typified act. Delimited in its scope of application, the challenged provision, therefore, not only does not appear manifestly unreasonable, but also does not violate the principle of offensiveness, understood as a precept addressed to the legislator so that it limits criminal repression to acts that express an offensive content of assets or interests deemed worthy of protection (judgments no. 207 and no. 139 of 2023, no. 211 of 2022, no. 278 and no. 141 of 2019).
In this regard, it is useful to recall that the configuration as a criminal offense of the conduct referred to in Article 633 of the Criminal Code assumes relevance in a dual perspective: on the one hand, the owner of the property or land subject to occupation or the subject otherwise protected by the same provision may legitimately react to the conduct of invasion arbitrarily carried out by a third party; on the other hand, the intervention of the police forces is legitimized in order to stop the conduct of occupation through the eviction of the occupants.
Moreover, as affirmed by the aforementioned decisions of this Court, the principle of offensiveness also operates as an interpretative-applicative criterion entrusted to the judge so that, in verifying the reconductability of the individual concrete case to the abstract punitive paradigm, he avoids bringing back to the latter behaviors devoid of any harmful capacity.
7.7.– The possible operability of the exemption of the particular minor nature of the act ex Article 131-bis of the Criminal Code also lends itself to the same objective of allowing a comprehensive and joint assessment of all the peculiarities of the concrete case of invasion of buildings, to the application of which the judge may proceed, when the permanence of the criminal conduct has ceased, taking into account the executive methods, the purposes of the same and the consequences that have derived from it.
8.– The questions of constitutional legitimacy raised with the order indicated in the epigraph must therefore be declared unfounded.
For These Reasons
THE CONSTITUTIONAL COURT
declares the questions of constitutional legitimacy of Article 633 of the Criminal Code, raised, in reference to Articles 2, 3, 42 and 47 of the Constitution, by the Ordinary Court of Florence, First Criminal Division, sitting as a single judge, with the order indicated in the epigraph, unfounded.
Thus decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 6 February 2024.
Signed:
Augusto Antonio BARBERA, President
Stefano PETITTI, Reporting Judge
Roberto MILANA, Director of the Registry
Filed in the Registry on 27 February 2024